Implied terms of contract Hi Im new to the board, I looked at the NR from Teuton and was wondering if anybody knows about the Implied terms of the contract, or any specific case law on the subject. I found some information from the Canadian Encyclopedia digest implied terms of contract, which I will post below. If anyone could point me to more information it would be greatly appreciated.
§634 Some courts have considered that deciding whether a term may be implied into a contract involves a two step process,[FN6] requiring the court to determine: (1) whether the term sought to be implied is inconsistent with any other express term or disclaimer clause in the contract[FN7]; and (2) if there is no such conflict, whether the term can properly be implied into the contract on the basis of one of the judicially recognized categories of implied terms.[FN8]
§635 The courts express caution regarding implying a term into a contract, emphasizing that they will not create a new contract or rewrite the contract made by the parties.[FN9] As well, no term will be implied that is inconsistent with the contract's express provisions.[FN10] An express power in a contract does not necessarily,[FN11] although it may possibly,[FN12] exclude by implication the common law rights of the party on whom the express power is conferred, although such express power does not impliedly negative or restrict the common law rights of the opposite party.[FN13] Since the circumstances and background of the contract, together with its precise terms, should all be carefully regarded before a term is implied, every case must be determined on its own particular facts.[FN14]
§636 An implied term will fall into one or more of three established categories:[FN15] (1) terms implied as necessary to give business efficacy to a contract, which are terms that the parties would obviously have assumed to be part of the contract (also known as terms implied in fact);[FN16] (2) terms implied as a matter of custom or usage, which require evidence that the parties to the contract would have understood such a custom or usage to be applicable;[FN17] and (3) terms implied as legal incidents of a particular class or kind of contract, the nature and content of which have to be largely determined by implication (also known as terms implied in law).[FN18] Depending on the particular fact situation, there can be considerable overlap between the categories.[FN19]